B. D. Gupta Vs. State of Haryana
[1972] INSC 223 (18 September 1972)
MUKHERJEA, B.K.
MUKHERJEA, B.K.
GROVER, A.N.
BEG, M. HAMEEDULLAH
CITATION: 1972 AIR 2472 1973 SCR (2) 323 1973
SCC (3) 149
CITATOR INFO :
D 1973 SC1124 (3) F 1987 SC2257 (18)
ACT:
Punjab Civil Services (Punishment and Appeal)
Rules, 1952 (Vol. 1, Part-I)-Rules 7.2 and 7.3-Punishment of CensureShow cause
notice must indicate precisely the charges and allegations-Opportunity to
show-cause necessary before the government prescribes what proportion of the
pay and allowances should be paid to the delinquent officer where the
suspension is held to be unjustifiable.
HEADNOTE:
In December, 1954, the appellant was arrested
and prosecuted under section 5 (2) of the Prevention of Corruption Act. He was
suspended in the same month. In November, 1956, the appellant was served with a
charge-sheet under Rue 7 (2) for the departmental proceedings to be held on two
charges of taking illegal gratification. The appellant submitted his
explanation on December, 18, 1956. The Enquiry Officer exonerated the appellant
of charge 1 (a). In 1960, the appellant was discharged in the criminal case.
The appellant was, thereafter, dismissed from service, on the finding of the
Enquiry Officer, that charge, 1 (b) was proved. The High Court of Punjab
quashed the dismissal order. After reinstatement, the appellant was served with
another suspension order in May, 1963. A fresh enquiry for charge 1 (b) was
ordered in 1965 but the same was later on withdrawn. On October 26, 1966, the
appellant was again directed to show-cause why he should not be censured for
his unsatisfactory explanation dated December 18, 1956. In reply to the showcase
notice in November, 1956, the appellant's explanation was found unsatisfactory
and a sentence of censure was imposed on him. Instead of granting full pay for
the suspension period the authorities ordered that the appellant should not be
paid more than the subsistence allowance received by him during the period of
suspension. The writ petition filed against the said orders by appellant was
dismissed by the single Judge of the Punjab High Court, and then by the
Division Bench.
Allowing the appeal,
HELD : The show-cause notice was vague, it
did not indicate whether the explanation was called for regarding charge 1 (a)
or charge 1 (b). As regards charge 1(b) it was finally withdrawn. The
show-cause notice did not indicate which part of the explanation dated
18-12-1956 was unsatisfactory.
In what way it was unsatisfactory and what
was the material before the Government on which it was thought that the
explanation was unsatisfactory. The notice being vague, the appellant did not
get any chance at all to show cause that he did not deserve a censure upon his
conduct. The appellant was not given an opportunity to show that the suspension
order against him had been unjustified and that he was entitled to full pay and
allowances. Under Rule 7 (3), the Govt. has to make two decisions (i) whether
the suspension was justified and (ii) what portion of the pay and allowances
should be paid to the delinquent officer? [328 C]
HELD : Further that the order regarding pay
affects the pecuniary interest of the appellant. No real opportunity was given
to the appellant to make an effective representation against the said order.
The order regarding pay during suspension period was not merely consequential
order to the first order. [331 B] 324 M. Gopala Krishan Naidu v. State of
Madhya Pradesh [1968] 1 S.C.R. 355, relied upon.
State of Assam and another v. Raghav Rajgopalachari
Civil Appeal No. 1561 and 1562 of 1966 decided on October 6, 1967,
distinguished on facts The appeal was allowed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2129 of 1969.
Appeal by special leave from the order dated
January 13, 1969 of the Punjab and Haryana High Court, at Chandigarh, in L.P.A.
No. 6 of 1969.
B. Sen and G. D. Gupta, for the appellant.
V. C. Mahajan and R. N. Sachthey, for the
respondent.
The Judgment of the Court was delivered by
MUKHERJEA, J. This appeal on special leave is from an order of the Division
Bench of the Punjab and Haryana High Court dismissing summarily an appeal
directed against a judgment and order of a Single Judge of that Court by which
a petition of the appellant under Art. 226 of the Constitution of India was
dismissed. The matter arises in connection with a disciplinary proceeding under
the Punjab Civil Services (Punishment and Appeal) Rules, 1952 which had a very
chequered career.
For a proper appreciation of the points
raised in this case it is necessary to set out some of the salient facts. The
appellant joined the Punjab Irrigation Department as a temporary Engineer in
1939 and in course of time became an Executive Engineer in that department. In
December, 19 4 he was arrested in connection with a case under Sec. 5(2) of the
Prevention of Corruption Act which had been registered against one K. R.
Sharma, Superintending Engineer, with whom the appellant had been working as a
Personal Assistant. The appellant was, however, enlarged on bail. About the
same, time the appellant was suspended with effect from 13 December 1954 and
certain departmental proceedings were started, against him. In November 1956
the appellant was served with a charge sheet under Rule 7.2 of the Punjab Civil
Services (Punishment and Appeal) Rules, There, were, two distinct charges made
against the appellant which will, for the sake of convenience, be described
hereinafter as Charge No. 1(a) and Charge No. 1(b). Both the charges were based
on allegations that the appellant had taken illegal gratification. We are not
concerned for the purposes of this, appeal with the details of the charges. On
18 December 1956 the appellant submitted a reply to the charge sheet to which
325 he added certain supplementary replies between MAY and July 195?. Government,
it appears, appointed an Enquiry Officer as late as October, 1957. On 18
February 1958 the appellant was., reverted from the post of Executive Engineer
(under suspension) to that of an Assistant Engineer (under suspension). In May,
1958 Government decided to defer the enquiry in respect of Charge 1 (b) until
there was a decision in regard to Charge 1(a), In," October, 1958 the
Enquiry Officer submitted to Government a report in respect of Charge 1(a)
which exonerated the appellant completely.
The Government then waited for another six
months before appointing another Enquiry Officer to conduct the enquiry in
regard to Charge 1(b). The appellant, it appears', asked Government on more
than one occasion to supply him with a copy of the report of the first Enquiry
Officer in respect of Charge 1 (a). Government, however, declined to supply any
copy. In December, 1960 the criminal case which had been Started against the
appellant in 1954 ended in discharge of the appellant. On 19 April 1961 the
appellant was dismissed from service on the basis of a report of the second
Enquiry Officer regarding Charge 1(b). This order of dismissal was, however,
quashed in March, 1963 by the High Court of Punjab and Haryana. The appellant
was, thereafter, reinstated and forthwith placed under another order of
suspension in May, 1963. A third Enquiry Officer was appointed simultaneously
for a fresh enquiry into Charge 1(b). In February, 1965 the appellant got a
decree in a civil suit by which he was allowed to recover the balance of his
pay and allowances for the period of suspension and for quashing the order of
reversion. Between 1963 and 1965 the appellant made various attempts through
what was apparently a high-powered board called the Establishment Board to
bring about a closure of the enquiry proceedings initiated against him. Nothing
happened until 15 December 1965 when, once again Government appointed a new
Enquiry Officer to, replace the earlier officer who had been appointed in
February, 1965. In January; 1966 the appellant was reinstated as Executive
Engineer and in October, the same year, the entire enquiry against the
appellant was withdrawn. One would have thought that this would be the end of
the unusually protracted proceedings against the appellant. On the contrary,
however, on 26 October 1966 Government served a fresh "Show Cause
notice"' on the appellant by which the appellant was told that his
explanation of 18 December 1956 in reply to the charges and allegations
levelled against him had been found unsatisfactory by Government and that
Government proposed to censure his conduct.
Immediately upon receipt of the said
"Show Cause notice" the appellant asked for a copy of the statement
made by one S. D 326 Khanna, Sub-Divisional Officer under Sec. 164 of the Code of
Criminal Procedure. The appellant justified his demand for a copy of S. D.
Khanna's statement by reference to two facts. First, 'Charge No. 1(b) related
to an alleged demand by the appellant for illegal gratification in the presence
of S. D. Khanna and he was, therefore, entitled to have a copy of the
statements made by Is. D. Khanna before the police and the magistrate.
Secondly, the appellant pointed out, under the orders of the High Court he was
expecting a copy of Khanna's statement to be supplied to him on 27 October
1966. He did not, however, receive a copy because the Government withdrew the
chargesheet against him on 18 October 1966. If, therefore, by a fresh
"Show Cause notice" the appellant was called upon to vindicate his
earlier reply to th e chargesheet, he was, he claimed, entitled to a copy of
the statement of S. D. Khanna. On 24 November 1966, however, Secretary to the
Government of Haryana turned down the appellant's request for a copy of
Khanna's statement.
Thereafter, on 16 December 1966 the appellant
submitted a reply to the "Show Cause notice".
On 27 February 1967 the Government passed an
order imposing the penalty of censure on the appellant. The substantive part of
the order is in the following terms :
"Your explanation has been duly considered
and the same has been found to be unsatisfactory.
The Governor of Harayana is accordingly
pleased to order that the penalty of censure be imposed on you. Your conduct,
is therefore, censured." On the same day another order was communicated to
the appellant by which the Governor of Haryana had directed that under Rule
7.3(3) of the Punjab Civil Services Rules, Volume 1, Part 1, the appellant
should not be allowed anything more than what had already been paid to him as
subsistence allowance during the period of his suspension from 31 May 1963 to 6
January 1966. The order included also a direction that the entire period of
absence from duty of the appellant on account of suspension from '31 May 1963
to 6 January 1966 was to be treated as a period spent on duty for all other
purposes.
In June, 1967 the appellant was given a
notice of compulsory retirement which was subsequently withdrawn. In October,
1968, however, the appellant was compulsorily retired. In the meantime,
however, in November, 1967 the appellant had filed a writ petition in the High
Court of Punjab and Haryana challenging the validity of the two orders dated 27
February 1967-one inflicting on him the punishment of censure and the other
withholding from him his usual pay and allowances beyond what had 327 been paid
to him as subsistence allowance during the period of suspension. The writ
petition was dismissed by a Single Judge of the High Court on 6 November 1968.
The appellant then went on appeal before a Division Bench of the High Court.
The appeal was, however, dismissed in limine. Upon being refused a certificate
for appeal to this Court, the appellant asked for special leave which was
granted to him on 3 October 1969.
Only two contentions were raised on behalf of
the appellant before us. First, it was contended that the appellant did not get
a reasonable opportunity to reply to the "Show Cause notice" dated 26
October 1966 on the basis of which he had been censured by the Government
inasmuch as the notice' was too vague to. enable him to give an effective
reply.
Secondly, it was contended that the order of
27 February 1967 which withheld from the appellant any payment in excess of the
subsistence allowance he had drawn during the period of his suspension was
liable to be struck down on the ground that it had been passed without giving
him any opportunity to make a representation against it. We shall now deal with
these contentions one by one.
The appellant's complaint about the
"Show Cause notice" of 26 October 1966 is one that has to be accepted
as substantial. For a proper appreciation of the appellant's contention, the
Memorandum containing the "Show Cause notice" may be set out in
extenso It was in the following terms "Your explanation dated the 18th
December, 1956, in reply to the statements of charges and allegations has been
considered and found to be unsatisfactory. The President of India, after taking
a lenient view, has tentatively decided to censure your conduct and also to
place a copy thereof on your personal file.
2.Before the proposed punishment is
inflicted, you are given an opportunity of making representation against the
action proposed to be taken. Any representation which you make in this
connection will be considered before taking the proposed action.
Such representation, if any, should be made
in writing and submitted so as to reach me not later than the 7th day from the
receipt of this communication by you. In case no reply is received within the
aforesaid period it will be presumed that you have no explanation to offer."
The only ground on which the Government proposed to censure the appellant is
the fact that the appellant's explanation dated 18 December 1956 in reply to
the statement of charges and 328 allegations had been found unsatisfactory by
Government. By the expression "Charges, and allegations" in this
"Show Cause ,notice", reference obviously is to the letter of 22
October 1956. That, letter, it will be remembered, contains two charges,
namely, Charge 1 (a) and Charge 1(b). The appellant's explanation of 18
December 1956 which is said to have been found unsatisfactory by Government was
a reply not only to Charge 1 (a) but also to Charge 1(b) of these two charges,
so far as Charge 1 (a) is ,concerned the appellant had been completely
exonerated in October, 1958. There is nothing, however, in the "Show Cause
notice" of 26 October 1966 to indicate clearly that the dissatisfaction of
Government with the appellant's reply of 18 December 1956 had nothing to do
with Charge 1 (a). The "Show Cause notice" merely states in vague
general terms that the appellant's 'reply to the charges and allegations was
unsatisfactory. Even if 'we were to assume, though there is no reasonable
ground for this assumption, that Government did not have in mind the contents
of Charge 1 (a) while serving this "Show Cause notice", there is
nothing in the "Show Cause notice" to give any indication that the
particular allegations regarding which the appellant had failed to furnish a
satisfactory explanation were referable only to ,Charge 1(b). The notice is
vague on other grounds as well. As one reads the first paragraph of the notice,
the questions that at once assail one’s mind are many: In what way was the explanation
of the appellant unsatisfactory? Which part of the appellant's explanation was
so unsatisfactory? On what materials did the Government think that the
appellant's explanation was unsatisfactory It is to our mind essential for a
"Show Cause notice" to indicate the precise scope of the notice and
also to indicate the points on which the officer concerned is expected to give
a reply. We have no manner of doubt that the "Show Cause notice" in
the instant case did not give the appellant any real opportunity to defend
himself against the complaint that his previous explanation of 18 December 1956
had been unsatisfactory. 'The appellant did not, therefore, get any chance at
all to show that he did not deserve a censure upon his conduct.
We were told that since the appellant was
aware of the charge and also aware of the reply he had given to the charges
made against him, it was enough for Government to tell him that his answer was
unsatisfactory. It was argued that since the "Show Cause notice"
really pointed this out and mentioned that the very lenient sentence of censure
upon the appellant's conduct was ,going to be imposed, there was nothing
further that Government could be expected to do in this case. We have no
hesitation in rejecting this contention made out on behalf of the State. It is
,manifestly clear that the "Show Cause notice" was too vague to 329
permit the appellant to deal with. it effectively and that consequently the
order of censure passed on him is bad and liable to be struck down.
We now come to the second contention raised
on behalf of the appellant that the order passed by the Governor of Haryana
which directed the withholding from the appellant any payment in excess of the
subsistence allowance he had already received during the period of his
suspension between 31 May 1963 , and 6 January 1966 was bad in so far as the
appellant had not been given a prior opportunity to make a representation
against such order.
The relevant order was passed under Rule 7.3
of the Punjab Civil Services Rules (Vol. 1, Part I) which is in the following
terms "7.3 (1) When a Government servant, who has been dismissed, removed,
or suspended, is reinstated, the authority competent to order the reinstatement
shall consider and make a specific order :(a)regarding the pay and allowances
to be paid to the Government servant for the period of his absence from duty;
and (b) whether or not the said period shall be treated as a period spent on
duty.
(2) Where the authority mentioned in Sub rule
(1) is of opinion that the Government servant has been fully exonerated or, in
the case of suspension, that it was wholly unjustified, the Government servant
shall be given the full pay and allowances to which he would have been
entitled, had he not been dismissed, removed or suspended, as the case may be.
(3)In other cases, the Government servant
shall be given such proportion of such pay and allowances as such competent
authority may prescribe:
Provided that the payment of allowances under
clause (2) or clause (3) shall be subject to all other conditions under which
such allowances are admissible.
(4)In a case falling under clause (2) the
period of absence from duty shall be treated as a period spent on duty for all
purposes.
(5)In a case falling under clause (3) the
period of absence from duty shall not be treated as a period spent on duty,
unless such competent authority specifically directs that it shall be so
treated for any specified purpose.
330 Provided that if the Government ;servant
so desires, such authority may direct that the period of absence from duty
shall be converted into leave of any kind due and admissible to the Government
servant." It is clear that before passing an order under Rule 7.3, the
authority concerned has to form an opinion as to whether the Government servant
has been fully exonerated and, also, whether, in the case of suspension, the
order of suspension was wholly unjustified.
It was urged on behalf of the appellant that
before the authority formed such an opinion, it was incumbent upon it to afford
an opportunity to make suitable representations in this behalf. Reliance was
placed upon the Judgment of this Court in M. Gopala Krishna Naidu v. State of
Madhya Pradesh(1). The appellant in that case had been exonerated of the
charges framed against him in a departmental enquiry.
Government held, however, that the
appellant's suspension and the departmental enquiry instituted against him
"were not wholly. Un justified". The relevant order, after
reinstating the appellant with effect from the date of the order and directing
the appellant's retirement from the same date on the ground that he had already
attained the age of superannuation contained a further direction that the
entire period of the appellant's absence from duty should be treated as a
period spent on duty under Fundamental Rule 54(5) for the purpose of pension
only, but that "he should not be allowed any pay beyond what he had
actually received or were allowed to him by way of subsistence allowance during
the period of his suspension". The appellant in that case contended that
his case really came under Fundamental Rule 54(2) and not under Fundamental
Rule 54(5) and that the Government should have granted him an opportunity to be
heard before deciding as to the rule which applied to his case. It was
contended on behalf of the Government that the order regarding allowances was a
mere consequential order and in passing such an order it was not necessary to
give a hearing to the party affected by the order. This Court, however, held
that an order passed under Fundamental Rule, 54 is not always a consequential
order or a mere continuation of the departmental proceeding taken against the
employee. Since consideration under Fundamental Rule 54 depends on facts and
circumstances in their entirety and since the order may result in pecuniary
loss to the Government servant, consideration under the Rule "must be held
to be an objective rather than a subjective function".
Shelat, J. who delivered the judgment of the
Court went on to observe: "The very nature of the function implies the (1)
[1968] 1 S.C.R. 355 331 duty to act judicially. In such a case if an
opportunity to show cause against the action proposed is not afforded, as
admittedly it was not done in the present case, the order is liable to be
struck down as invalid on the ground that it is one in breach of the principles
of natural justice".
We have no doubt in our minds that in this
case also justice and fair play demand that the Government should have given
the appellant a reasonable opportunity to show cause why an order affecting his
pay and emoluments to his prejudice should not be made, The decision in M.
Gopala Krishna Naidu’s (l) case had been cited before the High Court. The High
Court, however, sought to distinguish that case from the instant case on facts.
The High Court held that since in M. Gopala Krishna Naidu's(1) case the
proceedings had been dropped and the officer concerned reinstated, he never got
an opportunity to show to the appointing authority that his suspension had been
unjustified and that he was entitled to full pay and allowances, while-in the
instant case the appellant has already, according to the High Court, received
all reasonable opportunity to show cause against the punishment that has been
meted out against him. With respect, we do not think that-there is any real
difference in substance between the facts of the instant case and those in M.
Gopala Krishna Naidu's(l) case. The appellant in the instant case did not
really get an opportunity to defend himself against Charge 1 (b). It will be
remembered that in this case also the Government abandoned the proceedings
against the appellant with regard to Charge 1(b). Had the proceedings been
completed, it is not altogether impossible that the appellant would have been
exonerated also of that charge just as he had been exonerated of Charge 1 (a)
earlier. To that extent the appellant did not get any opportunity to show that
the suspension order against him had been unjustified and that he was,
therefore, entitled to full pay and allowances. From this point of view there
is really no difference between the instant case and the case of Gopala Krishna
Naidu(1).
Besides, the real ratio in M. Gopala Krishna
Naidu's(l) case was that if an order affects the employee financially, it must
be passed after an objective consideration and assessment of all relevant facts
and circumstances and after giving the person concerned full opportunity to
make out his own case about that order. In the instant case the order
unquestionably is one that seriously prejudices the appellant.
We would, further like to add that the fact
that even the order of punishment was made without giving (1) [1968] 1 S.C.R.
355.
4-498Sup. CI/73 332 the appellant a real
opportunity to make an effective representation against it makes the second
order affecting his pay and allowances still more vulnerable.
Mr. Mahajan appearing for the State sought to
rely in this connection upon an unreported decision 'of this Court in the,
State of Assam and Anr. v. Raghava Rajagopalachari(l).
That case was a case dealing with Fundamental
Rule 54 which is more or less similar to Rule 7.3 of the Punjab Civil Services
Rules, under which this second order of 27 February 1967 had been passed by the
Governor. The relevant portion of Fundamental Rule 54 is in the following terms
:"F.R. 54. When the suspension of a Government servant is held to have
been unjustifiable or not wholly justifiable; or When a Government servant who
has been dismissed, removed or suspended is reinstated;
the revising or appellate authority may grant
to him for the period of his absence from duty(a)if he is honourably acquitted,
the full pay to which he would have been entitled if he had not been dismissed,
removed or suspended and, by an order to be separately recorded, any allowance
of which he was in receipt prior to his dismissal, removal or suspension; or
(b)if otherwise such proportion of such pay and allowances as the revising or
appellate authority may prescribe.
In a case falling under clause (a) the period
of absence from duty will be treated as a period spent on duty. In a case
falling under clause (b), it will not be treated as a period spent on duty
unless the revising or appellate authority so direct." This Court held
that cl. (b) of the Fundamental Rule 54 would be applicable in all cases where
the officer concerned is not honourably acquitted. Since in that case the
Government servant had clearly not been fully exonerated of the charges levied
against him, it was open to Government to decide what period of absence from
duty during the period of suspension should be treated as period spent on duty
and, also, what proportion of pay and allowances should be given to him. This
decision cannot apply to the instant case for the simple reason that
Government, by withdrawing the proceedings initiated against the appellant in
(1) Civil Appeals Nos. 1561 and 1562 of 1965 decided by the Supreme Court on 6
October 1967.
333 respect of Charge 1(b), made it
impossible for the appellant to get himself fully exonerated. Since the
appellant had been exonerated of Charge 1(a) and since Charge 1(b) was
withdrawn, it is impossible for Government to proceed on the basis as if the
appellant has not been fully exonerated or to assume that the order of
suspension was one which was not wholly unjustified. In that view of the
matter, we do not think that case of the State of Assam and Anr. v. Raghava
Rajagopalachari (supra) can be of any assistance to the respondents.
In the result this appeal succeeds. The
judgment and order of the High Court are set aside. The orders dated 27
February 1967 impugned in the appellant's petition before the High Court are
quashed. The appellant will get the costs of this appeal as well as the costs
incurred below.
S.B.W. Appeal allowed.
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